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Employers shouldn’t hurry to file their annual injury and illness summaries electronically with OSHA even though the agency began accepting reports Aug. 1, employer-side attorneys are recommending.
Employers can delay filing until the Dec. 1 deadline, while the Trump administration reviews the Obama-era Labor Department rule and court cases challenge the regulation. This is the first time hundreds of thousands of employers are required to report electronically and many have raised concerns about whether the data would be publicly available. They fear that the public data would be used by unions and others to critique their safety performance and reveal information on the number of workers employed.
“People ought to wait and see because there is lot that is uncertain,” Jamie LaPlante of Porter Wright LLC in Columbus, Ohio, told Bloomberg BNA Aug. 1.
The uncertainties include the future of the rule itself and whether the Trump administration will seek to cancel selected provisions such as publishing the summaries on the Occupational Safety and Health Administration’s public website.
The Labor Department could decide to end the electronic filing requirement, making the submission question moot, LaPlante said.
“It’s still a long time between Aug. 1 and Dec. 1,” William Principe at Constangy, Brooks, Smith & Prophete LLP’s Atlanta office told Bloomberg BNA July 31.
If an employer does file a summary and the rule is later changed, OSHA shouldn’t be able to use the information to trigger an inspection, Principe said.
LaPlante cautioned that even if the DOL decides to accept the data but not to publish the information on its website, outside groups may still try to obtain reports through Freedom of Information Act requests.
For this first year of electronic filing OSHA expects about 466,000 employers to provide information through OSHA’s Form 300A summarizing the number on-the-job deaths, injuries, and illnesses and the incidents’ causes in workplaces.
The form doesn’t include details of each incident or the number employees at worksites.
The establishments required to file include those with 250 or more employees and locations with 20 to 249 employees in industries designated by OSHA as having historically high rates of occupational injuries and illnesses. The high-rate industries include all construction and manufacturing categories, and a wide range of health-care, transportation, and retail groupings.
The OSHA portal allows employers to submit their own forms, such as spreadsheets, or enter the information manually into the government site.
OSHA declined Bloomberg BNA requests to discuss the new portal.
As OSHA wrote the rule (RIN:1218-AC49), the main objections to the regulation focused on OSHA’s intention to publish the data on its public website and several side issues, such as restrictions on safety incentive and drug testing programs that could lead to incidents going unreported.
Several employer groups and businesses challenged the rule in two federal court cases. Those cases were put on hold when the DOL announced June 27 it was reviewing the rule and moving the submission deadline back five months to Dec. 1 (82 Fed. Reg. 29,261).
The department hasn’t indicated what portions of the rule, if any, the Trump administration will continue.
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The submission portal is available at https://www.osha.gov/injuryreporting/index.html.
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